Madhya Pradesh High Court
Anil Virmani vs Parsis Zoroastrian Anjuman Trust on 21 August, 2014
1
W.P.No.3625/2014
Date: 21/8/2014
Shri Harsh Virmani learned counsel for the petitioner.
Shri Rishi Tiwari learned counsel for the respondent.
Heard finally with consent.
This writ petition under Article 227 of the Constitution of India is at the instance of judgment debtor challenging the order of executing court dated 15/4/14 rejecting the petitioner's application under Order 21 Rule 26 of CPC.
In brief, the decree was passed in favour of respondent trust and the execution case was filed by the trust through its trustees. The petitioner had filed an application under Order 21 Rule 26 CPC seeking stay of the execution proceeding on the ground that Shri B.M. Masani who was initial trustee had died and after death of Shri B.M. Masani no trustee was legally brought on record therefore, the execution proceeding be stayed. The application was opposed by the respondent and the executing court by order dated 15/4/14 had rejected the application noting that the decree is in favour of trust and apart from Shri B.M. Masani there are other trustees on record and therefore, on the death of Shri B.M. Masani it is not necessary to bring on record his legal representatives. Taking note of the provisions of Order 21 Rule 15 CPC, the executing court has 2 rejected the application under Order 21 Rule 26 CPC filed by petitioner.
Learned counsel for petitioner submits that on the death of Shri B.M. Masani the proceeding cannot continue unless his legal representatives are brought on record. In support of his submission, he has placed reliance upon the judgment of the Supreme court in the matter of V. Uthirapathi Vs. Ashrab Ali and others, reported in AIR 1998 SC 1168.
As against this counsel for respondent has supported the impugned order.
Having heard the learned counsel for parties and on perusal of the record, it is found that the executing court has not committed any error in noting that the decree is in favour of trust and apart from Shri B.M. Masani, there are other trustees which are on record. A copy of execution application has been produced by the learned counsel for petitioner which indicates that the execution application is filed by the trust and other trustees have also been impleaded as the decree holders. It has been specifically pointed out that Shri Firoz Elava one of the trustee who is still alive and is prosecuting the execution as a decree holder. In these circumstances, the executing court has not committed any error in placing reliance upon Order 21 Rule 15 CPC.
3The judgment in the matter of V. Uthirapathi (supra) relied upon by counsel for petitioner is of no help to the petitioner because that was a case where the decree holder after filing the execution petition had died and his legal representatives were not brought on record but present case is a case of trust where some of the trustees are executing the decree.
Thus, no case for interference in the impugned order in exercise of limited jurisdiction under Article 227 of Constitution of India is made out. The writ petition is accordingly dismissed.
C.C. As per rules.
(Prakash Shrivastava) J U D G E BDJ